28 F. 898 -

28 F1d 898

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Case Text

898

FEDERAL REPORTER.

their bill in equity against the present complainants, who are nonresidents of the state, in the circuit court fOldhltt district, for the purpose of obtaining an accounting of the amount due on the mortgage; claiming that the aforesaid credits were properly applicable to the payment of the mortgage, that the same was thereby paid, and therefore that the mortgage and notes should be decreed to be canceled. Personal service was had upon defendants there, and the suit is still pending and undetermined there. Attention is not here given to the peculiar circumstances which attend these credits, and which are set forth in detail in the pleadings, because the equities of the parties are not now to be ascertained and determined. A motion is now made to dismiss the bill upon the assumption of the facts stated in the plea, which is treated by the parties as in the nature of abatement .because of the suit pending in the Eastern district. I shall therefore give no attention to any question of practice which counsel for the parties have not raised. The point for decision is whether the former suit, pending in the Eastern district, should abate the present; and, if not, what course should be taken in this suit while the other is pending. It is a wellsettled rule, prevailing as well in the state as in the federal tribunals, that when a court, having jurisdiction of the parties and subjectmatter, has obtained control ofthe matter in controversy, it is thereby withdrawn from the scope of other tribunals, and may not be the subject of litigation elsewhere. But there is some contrariety of view, leading to apparent, and perhaps actual, diversity of decision in respect to the meaning of the term "matter in controversy" in the definition of the rule. Counsel for complainants has argued here that, in order to exclude the jurisdiction of the court in which the second suit is brought, the object of the former suit must be the same as in the second, and the court in which it is pending must have authority to grant the relief sought and otherwise obtainable in the second suit; whereas, upon the pleadings and controversy in the Eastern district, all that court could do would be to dismiss the bill. In case his clients should succeed there, the mortgage would remain unforeclosed, and the parties would be left where they were when the suit began; and he claims, what is manifest enough, that the object of that suit is not the same as that in the present one. And there are authorities which seem to Rustain that contention. Among the cases cited by counsel are Granger v.Judge of Wayne 27 Mich. 406; Pullman v.Alley, 53 N. Y. 637; Evans v.Dingle, 55 Ill. 455; Kelse.yv. Ward, 16 Abb. Pro 98; Ostell V. Le Page, 21 Eng. Law & Eq. 640. But a somewhat carefnlstudy of the authorities generally, and especially those in the federal courts, and of the legall'easons on which the doctrine rests, leads me to the conclusion that this is too narrow a definition, and would not in all cases answer the requirements of the rule; but, on the contrary, would exclude a great many which are plainly wiihin its reasons and policy. ,

HURD 11. MOILES.

899

And the conclusion seems to me to be inevitable that, where the question is whether the present suit can proceed notwithstanding another one of prior instance is pending, the inquiry must be whether the transaction or res which constitutes the subject of inquiry and decision is the same, so that, when decided, there would be a judicial estoppel of the parties upon that mntter. The purposes of the rule are twofold: First, to prevent collision between courts; and, second, to assure to parties a certain and unfluctuating adjudication of their rights. It may be that the first of these purposes is not so mani. festly involved in cases where the subject which has been drawn within the jurisdiction of the court is a right rather than a tangible thing, because the danger of actual collision is not so great; but the mischief to the parties and the unseemliness of the conflict in jurisprudence are the same; and it seems to me that the other reasons than that of the danger of actual conflict in the execution of process furnish a sufficient foundation for the doctrine, and that it ought to be applied where those reasons exist. Insurance Co. v. University, 6 Fed. Rep. 44:3, ea case not distinguishable in any material circumstance from the present;) Bruce v. Railroad Co., 19 Fed. Rep. 342; Peck v. Jenness, 7 How. 612; Chittenden v. Brewster, 2. Wall. 191. It is quite likely that there is a distinction between those cases where the question is whether the former suit is one pleadable in strict abatement of the second, and those where the pendency of the former suit is presented as the ground for staying proceedings in the second. There would seem to be something of practical substance in that distinction; and, if so, it would furnish ground for holding, with complainant's counsel, that, in order to be pleadable in abate· ment, the first suit must be for the same purpose as the second, and substantially the same relief obtainable; and, vice versa, I should be required to hold that, when the subject-matter has been drawn into another jurisdiction for some purpose which may involve a decision upon its merits, the court should stay the second suit brought for a different purpose, and for relief not obtainable in the first suit, until the determination of the first, when the subject-matter is released from the hold of the court impressed or not by the adjudication which that court has made. Upon this reasoning it would follow that, while the matter of the plea is not strictly pleadable in abatement of the present suit, it exhibits a state of facts which should induce this court to stay all further proceedings here until the determination of the suit in the Eastern district, or until the further order of this court; and such will be its order.

900

FEDERAL REPORTER.

ANDERSON, Receiver,

Oourt, 8.

'V.

KISSAM and others.

October 23, 1886.)

n.

New York.

DISCOVERY-DEFENSE-DENIAL THAT EVIDENCE WILL BE OF ASSISTANCE.

A defendant cannot defeat a full discovery by denying that the evidence will be of assistance to complainant. It is only when it can be seen that the interrogations, if answered affirmatively, would not assist the complainant in establishing his cause of action, that answers will be dispensed with.

In Equity. William A. Beach, for complainant. Burrill, Zabriskie & Burrill, for defendants. WALLACE, J. The complainant is entitled to answers to the specific interrogatories of the bill, except such of t.hem as call for evidence of transactions which are immaterial to the matters charged in the bill, and the defendants cannot defeat a full discovery by denying that the evidence will be of assistance to the complainant. It is only when it can be seen that the interrogatories, if answered affirmatively, W9uld not assist the complainant in establishing his cause of action, that answers will be dispensed with. It may be that some of the interrogatories call for more minute details than are necessary. When they are answered with sufficient fullness, the defendant will be protected from such minuteness of discovery as would be vexatious or oppressive. The complainant is entitled to a copy of the account between Warner and the defendants, covering the period of the transactions set forth in the bill, and to copies of letters, books, and documents which may serve to enable the complainant to trace the ,moneys, drafts, or checks appropriated by Warner into the hands of the defendants.

Under Code Iowa, §§ 3112-3117, when one lien creditor has redeemed property from a foreclosure sale within nine months thereafter, another creditor cannot redeem from him after the nine months, and before the expiration of a year, unless the former makes the entry in the sale-book provided for by section 3115, naming the utmost amount he is willing to credit on his claim; at least, without paying all liens upon the property held by the firstmentioned redemptioner, whether iunior or senior to his lien.